Directors: duties, disqualification and indemnities

In Antow Holdings Limited v. Best Nation Investments
Limited, a case concerning a challenge to the transfer of
shares, the Eastern Caribbean Court of Appeal conducted an
extensive review of the duties which a director owes to a company
under BVI law. In alignment with most common law jurisdictions,
these include duties to act for a proper purpose and in the best
interests of the company, and not to use their powers for a
collateral purpose; and, in the BVI, a statutory duty to disclose
conflicts of interest. The court held that where a director failed
to consider the interests of the company at all, subjective honesty
was no defence, and it was not open to the director to assert that
the decision taken was in the best interests of the company.
Moreover, a decision taken by a director in what he considered to
be the best interests of the company would be liable to be set
aside if it was entered into for an improper purpose.

Similar duties apply to directors of companies in the Isle of
Man. FSA v. Irving & Otr was a case
determined under the Company Officers (Disqualification) Act 2009.
Though decided under a statutory regime, in considering whether
certain directors should be disqualified, the judgment provides a
comprehensive overview of the common law and equitable duties owed
by a director to a company. In particular, in relation to the
fiduciary duty to act bona fide in the interests of the company and
with a proper purpose, the case makes clear that directors must
ensure that they maintain independence in assessing whether any
transaction would be for the benefit of the company and
particularly not be bound by any third party obligations in
relation to their decision-making.

Granting the disqualification order, Deemster Christie QC said,
unsurprisingly, that a company must not purely be a vehicle for a
dominant director to benefit himself.

Quite apart from the application of any general directors’
disqualification regime, directors of regulated entities are of
course commonly subject to ‘fitness and propriety’
requirements under the regulatory laws. Such is the case in
Mauritius, where in Rookny v. The Financial Services Commission
of Mauritius, the Supreme Court expressed its views on what it
means to be a ‘fit and proper person’ to hold a
position as officer of a licensee of the Financial Services
Commission of Mauritius. Following a disciplinary hearing, Mr
Rookny had been disqualified for two years by the Enforcement
Committee of the Financial Services Commission and that decision
had been upheld by the regulator’s Financial Services Review
Panel. The director took the matter to court by way of a judicial
review, both on the grounds of the powers of the Review Panel and
the lawfulness and reasonableness of its decision.

The application for judicial review was turned down. On the
issue of ultra vires, the relevant section applied not only to a
licensee entity but also to its officers, so the Review Panel was
within its powers. It followed that in determining whether someone
was ‘fit and proper’ the person’s ‘ability
to perform the relevant functions properly, efficiently, honestly
and fairly’ as well as ‘his reputation, character,
financial integrity and reliability’ were relevant. In these
circumstances the Supreme Court found that it was legitimate for
the Enforcement Committee to have ‘regard to the sum total of
the conduct of the applicant in arriving at the decision as to
whether he was a fit and proper person to hold an office or
position in a licensee of the [FSC].’

Similar considerations were discussed in the Royal Court of
Guernsey in Y and the Chairman of the Guernsey Financial
Services Commission and Her Majesty’s Procureur. The
Bailiff noted that “if found not to be a fit and proper
person, the consequence is that a prohibition order may be made. It
is a form of protection for those using licensed fiduciaries,
ensuring that those individuals who the Guernsey Financial Services
Commission finds not to be fit and proper cannot perform functions
that are prohibited by the order. Once found not to be a fit and
proper person, the next stage would be whether or not there are
steps that can be taken to rehabilitate the person so that he or
she is once again regarded as a fit and proper person.”

Directors’ relationships with companies are of course also
affected by their service contracts and the company’s
constitutional documents. In some jurisdictions, including Cayman,
it remains possible for these to contain indemnities in favour of
directors (other than for fraud and wilful default). Such
indemnities were before the Court in Goodman v. Cummings and
Another. The liquidators of the insolvent fund Tangerine
Investment Management assigned claims against the defendant, a
previous director of the fund, for common law director duties
and/or breach of fiduciary duty. The plaintiff claimed that Ms
Cummings’ employer, the second defendant, was vicariously
liable for any default on her part. In response, the defendants
sought to rely on indemnities in the fund’s articles of
association. The court concluded that those indemnities were
incorporated into in the director’s contract of service
despite there being no written terms. The court also considered
whether the indemnities extended to former directors of the fund in
addition to those presently in office. The court found in Ms.
Cummings’ favour and she was entitled to her legal fees and
expenses under the indemnity.

Shares and shareholder rights

In Bank of Nova Scotia v. Registrar of Corporate
Affairs, the Eastern Caribbean Court of Appeal reviewed the
law around what should happen to disabled bearer shares and whether
they were permanently immobilised. The question arose following
legislative changes in 2005 aimed at disabling (and ultimately in
practice phasing out) bearer shares issued by BVI Companies, by
requiring them to be held by registered custodians – a
process known as ‘immobilisation’. The BVI Financial
Services Commission argued that the transitional provisions had the
effect of permanent immobilisation. The Court of Appeal rejected
that contention: it held that it was not the intention of the
legislature to expropriate the assets of shareholders holding
disabled bearer shares and confirmed that a residual right to
redeem the shares exists. The court read the statute in a manner
which made it consistent with the BVI Constitution Order.

In the Cayman Islands, the court had to determine an array of
issues following the issue of shares to groups of investors in a
Cayman company which diluted existing shareholdings. In David
Xiaoying Gao v. China Biologic Products Holdings Inc, the
court accepted almost all of the defendant’s arguments
revolving around the central premise that the plaintiff lacked
standing to bring the proceedings.

In the main issue in the case, the court confirmed the general
rule that minority shareholders do not (unless for example there
are some special circumstances) have standing to pursue a personal
action to set aside or restrain an improper allotment of shares
which would dilute their voting power. Any such breach of fiduciary
duty would be actionable by or derivatively on behalf of the
company. Aside from a statutory right, there is no right for a
minority to bring an action against the company for a
director’s breach of duty in respect of an improperly
allotted share issuance. The court therefore rejected the argument
that the dilution of share voting rights constitutes a freestanding
exception to the rule in Foss v. Harbottle. The court also
rejected the plaintiff’s claim that, as beneficial owner of
the shares, he possessed standing to assert a personal claim for
breach of fiduciary duty and also rejected the submission that the
right to pursue a claim is assignable independently of the shares
themselves.

Derivative Actions

When the necessary conditions are met, shareholders are of
course able to bring derivative actions on behalf of the company.
In Top Jet Enterprises Limited v. Sino Jet Holding Limited and
Jet Midwest, the Grand Court widened the scope of derivative
claims brought on behalf of a Cayman company by aggrieved
shareholders, by stating that such a derivative action can be
brought not only against the company’s directors, but also
against third parties where that third party is an “accessory
to or closely associated with the conduct which gives rise to the
fraud on the minority”.

The court also determined what happens in relation to derivative
claims brought by shareholders of Cayman companies in foreign
courts. Earlier in Paul Davis v. Scottish Re Group
Limited, the Court of Appeals in New York had held that the
plaintiff did not need to seek leave of the Grand Court of the
Cayman Islands to commence the derivative action in New York,
because this was a procedural requirement only and it could cause
unnecessary delays or inefficiencies. In this later case, Jet
Enterprises Limited started proceedings in Missouri, USA. Jet
Midwest, the second defendant, challenged Jet Enterprises’
standing to commence the proceedings but before that issue was
determined, the plaintiff made an application to the Cayman court.
The plaintiff sought leave to continue the proceedings, if leave
was required, in the US together with a declaration under Cayman
law that it was entitled to bring a claim against Jet Midwest
derivatively.

The Cayman Court said that it did not have jurisdiction to grant
leave and any challenge to the plaintiff’s standing would
need to be taken up with the US Court. Order 15 Rule 12A(2) of the
Grand Court Rules, which requires a plaintiff to seek leave, does
not apply to foreign proceedings. The court did say that in certain
instances it would provide what it termed a “supervisory
jurisdiction”.

Winding Up – Just & Equitable

There has also been plenty of action in respect of shareholders
who have sought the court’s relief to wind up companies on
just and equitable grounds in various jurisdictions. In the BVI,
the question which arose in Delco Participations v. Green
Elite was whether the substratum of Green Elite had failed in
circumstances where it had sold its only asset. The Court of Appeal
held that the winding up of Green Elite’s affairs was to be
distinguished from its commercial purpose, with the result that a
company that has entered into a wind down has no continuing
commercial purpose. The court also rejected a contention that Delco
should have pursued an alternative remedy in unfair prejudice on
the basis that the cost and time involved in taking unfair
prejudice proceedings made that remedy inappropriate.

Also in the BVI, in Yaojuan v. Kwok, the claimant
brought unfair prejudice proceedings alleging exclusion from
consultation or participation in the affairs of the company. She
sought a share buy-out order whereby the defendant would sell her
shares to her, but the court determined that this was a case in
which a winding up order would be more appropriate: the underlying
business was held through a subsidiary which was otherwise
successful, and a winding up order would give both shareholders
(and anybody else) an equal opportunity to bid to acquire the
shares. The court was keen to ensure that the remedy ordered was a
proportionate response to the proceedings and it was not
appropriate to order an equal shareholder to sell its shares.

In the Cayman Islands and Bermuda, the court similarly had to
consider the appropriateness of an alternative remedy to winding up
the company. In Sturgeon Central Asia Balanced Fund, the
petitioners argued that changes to the bye-laws by the management
shareholder which excluded petitioning shareholders from voting to
wind the fund up, demonstrated a lack of probity and led to a
justified loss of confidence in the management’s conduct of
the fund’s affairs. At first instance, the court found that
there was no evidence of bad faith and dismissed the petition on
this basis. The Court of Appeal referred to the observations of
Lord Wilberforce in Ebrahimi v. Westbourne Galleries Ltd
that “to confine the application of the just and equitable
causes to proved cases of mala fides would be to negative the
generality of the words” and noted that the shareholders had
been denied a fundamental right. Accordingly, the court allowed the
appeal, holding that while lack of probity would be a strong factor
in favour of a just and equitable winding-up, it was not a
prerequisite.

In the Cayman Islands in Re Torchlight Fund, the
petitioners sought the winding up of a limited partnership because
of an alleged lack of probity by its general partner. However,
during the course of the proceedings, the reasons shifted to a loss
of confidence in the general partner due to corporate governance
failings. The court found that the failings of Torchlight's
general partner were insufficient to justify winding up the
partnership. Moreover, the court found that the petition had been
brought to enable the petitioners to "obtain accelerated
liquidity" and was, therefore, an abuse of the ‘just and
equitable’ jurisdiction. The judgment contains useful
guidance on what will constitute good grounds for a just and
equitable winding up and emphasises the importance of demonstrating
that the winding up is made for a proper purpose.

In the Matter of China Shanshui Cement Group was a case
where there had been a long history of shareholder disputes and
take-over battles amongst some of the shareholders. The petitioner
alleged that the affairs of the company had been conducted with a
lack of probity, such that the petitioner had lost faith in
management and an investigation by independent insolvency
practitioners was needed. In response, the company presented a
strike-out summons and stated that the petitioner had presented
misleading facts in relation to the petition, the alleged lack of
information was “self-inflicted” and the petitioner had
failed to comply with its previous undertaking to the court.

The court considered whether the petitioner had unreasonably
failed to pursue alternative and less drastic remedies since the
company asserted that the petition was being used for collateral
purposes. The court reviewed an extensive number of authorities and
concluded that it was plain that the petition was not presented
with the purpose of advancing a class remedy. The existence of
alternative remedies which the petitioner could have pursued was
fatal to a winding up petition on the just and equitable ground and
therefore on this ground alone should be struck out. It is clear
that while the court will protect shareholders’ rights, it
will not allow those rights to be the foundation for collateral
purposes.

A similar issue arose in In Re eHi Car Services
Limited, where a minority shareholder issued a winding up
petition against eHi Car Services Limited, a NASDAQ-listed, Cayman
incorporated company. The background to the case involved the
company having two competing privatisation proposals before it. One
was advanced by a consortium led by the chairman of the company,
while the other was advanced by another shareholder supported by
the petitioner. Upon acceptance of the consortium’s proposal,
the petitioner presented a winding up petition seeking relief which
would order a reconsideration of the proposal it supported together
with an injunction that would prevent the consortium’s
proposal being implemented. (In Cayman, there is no direct unfair
prejudice petition, but on a petition to wind up, the court can
grant alternative remedies. However the grounds to wind up must
still be present). The court ultimately struck out the petition,
finding that winding up the company would be wholly unsustainable
in the context of this proceeding, since there were more suitable
remedies available for the minority shareholders than a winding up
proceeding. The petition was made as an attempt to further the
petitioner’s own commercial interests to force the company to
reconsider its proposal, rather than seeking to advance a class
remedy on behalf of other shareholders.

Importantly, the decision now stands as authority for the
principle that a minority shareholder may not pursue a winding up
petition in order to delay or prevent a Board-approved
privatisation offer. Dissenting shareholders are able to vote
against resolutions proposing the privatisation at the EGM and even
if the privatisation is to go ahead, may then exercise dissenting
shareholder rights under section 238 of the Companies Law.

Merger disputes and appraisal actions

Moving to the rights of dissenting shareholders, the Cayman
court has continued to be kept busy by litigation produced by
shareholders seeking fair valuation of their shares.

The Cayman courts have continued to be kept busy by appraisal
litigation, in which shareholders dissenting from a statutory
merger seek judicial determinations of the fair value of their
shares.

In the first quarter of the year, in Re Shanda Games
Limited, the Cayman Islands Court of Appeal overruled the
Grand Court and held that a minority discount should generally be
applied when determining the fair value of shares held by a
minority shareholder following its dissent from a merger. The Court
of Appeal considered the approaches taken to the question of fair
value in other jurisdictions and contexts and, relying particularly
on certain English authorities concerning squeeze-out offers and
schemes of arrangement, it concluded that the merger regime, as an
additional possible means of buying out minority shareholders,
could not have been intended to depart from the approach of the
English courts in those other contexts. The company’s appeal
was therefore allowed.

Later in the year, in light of the aforementioned appeal
judgment in Re Shanda Games, the Grand Court in Re Zhaopin
Limited considered it necessary to allow for the effect of a
minority discount when setting the amount of the interim payment
which the company would be ordered to make to the dissenters on
account of fair value. The court accepted that it would be a
hardship if the company were required to pay a larger amount by way
of interim payment, than that which it contended was likely to be
awarded at trial, and therefore applied a 15% discount to the
interim payments ordered. This should, however, be viewed as a
transitional ruling on this issue, since the interim payments in
this case had been sought by reference to the price which the
company asserted represented fair value prior to the Shanda appeal
judgment, and thus without having applied any minority discount in
its own assessment of fair value.

The Court of Appeal also decided in Re Qunar Limited
that dissenting shareholders would be required to give discovery of
documents relevant to determining fair value in the same way that a
company does in such appraisal proceedings, overruling a line of
authority to the contrary which had developed in the Grand Court.
The Court of Appeal observed that orders for discovery from only
one party were not known to exist in any other context in Cayman
Islands litigation, and it could see no further reason why it
should depart from the standard principle, that the provision of
discovery from both parties should be ordered where necessary.
Investors might well have documents which were just as important as
a company’s own documents for determining fair value.

The dissenting shareholders in Re Qunar later applied
to the Grand Court for special confidentiality protections in
respect of certain documents. The court refused the
dissenters’ request for such protections against the company,
reminding the parties of the implied undertaking not to use
discovered material for any other purpose, as well as the
court’s inherent jurisdiction to require express undertakings
where needed. Additionally, the court considered that the
dissenters should discover documents created within the same time
period for which the company was required to give discovery. It is
therefore clear that the Grand Court will now approach the question
of discovery on the footing that there must be equality in respect
of the obligations imposed on both the company and the
dissenters.

The other key issue before the court has been the use to which
statements made in “management meetings” between
experts and the management of the companies involved can be put in
the experts’ opinions on fair value and at trial. In Re
Kongzhong Corporation, the court followed an earlier decision
in Re Nord Anglia, where it stated that a transcript of a
management meeting could not be used like a deposition, as evidence
of facts stated therein, in the absence of corresponding legal
protections. The court decided that the admissibility of the
transcript of such a meeting should be agreed between the parties,
subject to any necessary clarification of the statements made
therein, and failing such agreement, be determined by the court.
The court considered that the unregulated use of transcripts could
potentially prevent the parties discussing matters relating to the
determination of fair value at ease and with complete
transparency.

Rectification

There has been a notable amount of activity around the
rectification of share registers. In Cannonball Plus Fund v.
Dutchess Private Equities Cayman Fund Ltd an application was
made to rectify the register of members of a Cayman company in
accordance with section 46 of the Companies Law. The defendant
resisted the application, relying on the English case of
Nilon, on the basis that the court only has jurisdiction
to rectify the register when a party has an existing right to be on
the register of members, rather than a shareholder with a right to
be entered in the future. The court considered the Nilon
case, but stated that the plaintiff had much more than a mere
prospective claim and found for the plaintiff and ordered
rectification.

Later in the year, the court gave judgment in In the matter
of Project Panther Ltd v. Comerica Bank & Trust (As Personal
Representative of the Estate of Mr Prince Rogers Nelson).
Project Panther, a Cayman company, sought to rectify the register
of members by the removal of Prince Rogers Nelson (better known as
the famous musical artist, Prince) as a shareholder.

The parties had settled a dispute in Minnesota in the United
States concerning whether Prince became a shareholder of Project
Panther. The settlement included a term that the Prince Estate
would co-operate with an application for the rectification of
register of members of Project Panther in the Cayman Islands. The
court was willing to grant the application since both parties
agreed that Prince, in fact, never became a member of Project
Panther and his name had been entered on the register of members
without sufficient cause.

Appleby acted for the Appellant in the Antow case in BVI and
for the dissenting shareholders in Qunar and Nord Anglia in
Cayman.

First published as part of In the Courts
2018.

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